Watkins v. United States of America

Filing 65

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that this action is DENIED in all respects. IT IS FURTHER ORDERED that the Court will not issue a certificate ofappealability. An Order of Dismissal will be filed separately. Signed by District Judge Henry Edward Autrey on 6/30/14. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CARL WATKINS,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent,

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No. 4:11CV1118 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Carl Watkinis’ motion to Vacate, Set
Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. The United States of
America has responded to the motion. On April 19, Petitioner filed a motion for
leave to amend the original §2255 motion. [Doc. 38]. The motion for leave to
amend was granted on April 20, 2012. [Doc. 40]. Petitioner filed three subsequent
motions to amend, all of which were granted by this court.
Facts and Background1
On December 28, 2009, Movant entered a U.S. Bank, 301 North Tucker, St.
Louis, Missouri. Movant approached a teller’s window and presented a
handwritten note stating, “This is a robbery. Give me everything in your top
drawer”. The teller collected $2,100 in U.S. currency and handed it to Movant.
1

The facts are taken from the Presentence investigation report and the plea agreement filed in
this matter.

Movant took the currency and his note and placed in an envelope. He then walked
out of the bank.
On January 13, 2010, Movant entered Commerce Bank located at 6630
Delmar, University City, Missouri. Movant approached a teller’s window and
handed a note to the teller which stated, “This is a robbery”. The teller pulled the
piece of paper closer, at which time Movant responded by grabbing the paper and
telling the teller, “Don’t do anything, just give me the money”. The teller handed
$3,785 in U.S. currency to Movant. Movant took the money and left the bank.
On February 1, 2010, Movant entered the Commerce Bank located at 6383
Clayton Road, Clayton, Missouri. Movant approached a teller window and
presented a handwritten note with the words: “This is a robbery. Don’t be a hero.
Give me all large bills”. The teller delivered Movant $2,090 in U.S. currency.
Movant took the money and ran from the bank.
The total amount of U.S. currency taken during the bank robberies totaled
$7,975. However, $2,070 was recovered at the time of Movant’s arrest and was
returned to the Commerce Bank in Clayton, Missouri.
PROCEDURAL HISTORY
On February 4, 2010, the federal grand jury for the Eastern District of
Missouri, in St. Louis, returned a three-count indictment against Movant. In Count
I, he was charged with the robbery of the U.S. Bank in the City of St. Louis on
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December 28, 2009. In Count II, he was charged with the robbery of the
Commerce Bank on January 13, 2010. The third count charged him with robbery
of the Commerce Bank on February 1, 2010.
At the time the indictment was returned, Movant was in State custody
awaiting resolution of a probation revocation matter arising from these bank
robberies. The United States applied for a writ of habeas corpus ad prosequendum.
That warrant was issued on February 5, 2010 and Movant was temporarily
transferred into federal custody. [Doc. # 4] He was appointed a Federal Public
Defender to represent him. In April, 2010, Movant waived his right to file pre-trial
motions. [Doc. #24, 25, 26]. Thereafter, In July 2010, Movant=s attorney withdrew
from representation and a new attorney, Paul Sims, was appointed by the Court to
represent Movant. [Doc. #37, 39, 40, 41].
The matter was set for trial to begin on October 12, 2010. Movant, however,
elected not to proceed to trial and appeared before this Court on October 14, 2010,
to enter a plea of guilty. Movant pleaded guilty to Count I of the Indictment
pursuant to a Plea Agreement between the parties.
On February 22, 2011, Movant appeared before this Court for sentencing.
The Court sentenced Movant to a term of imprisonment of 54 months. The Court
also imposed a term of Supervised Release of three years. Pursuant to the terms of
the plea agreement, the Government moved to dismiss Counts II and III of the
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indictment. The motion to dismiss the remaining counts of the indictment was
granted by the Court.
Despite a waiver of appeal in the plea agreement between the parties,
Movant appealed his conviction to the Eighth Circuit Court of Appeals. Thereafter,
Paul Sims filed a document with the Eighth Circuit stating that he had talked with
Movant and they had determined it was in Movant’s best interest to dismiss his
appeal. The appeal was subsequently dismissed by the appellate court on April 11,
2011.
Movant next filed his Motion for Post-Conviction Relief pursuant to Title 28
U.S.C. Section 2255 and his various amended motions.
CLAIMS FROM THE INITIAL MOTION FOR
POST CONVICTION RELIEF
Movant has raised eight grounds for post-conviction relief in his original
motion for post-conviction relief. Each of his grounds for relief asserts ineffective
assistance of counsel, citing the following reasons: (1) a generic claim that counsel
was ineffective; (2) failing to subject the prosecution to meaningful adversarial
challenge; (3) failing to explain the plea agreement fully to Movant; (4) incorrectly
informing Movant that his federal and state sentences would run concurrently with
each other; (5) failing to present mitigating evidence to the Court at sentencing; (6)
failing to reinstate the pretrial motions and to conduct pretrial discovery; (7)

4

misadvising him of the improbability of acquittal and benefit of pleading; and (8)
misadvising Movant on direct appeal.
THE AMENDED CLAIMS
A. Amended Claim of April 19, 2012
Movant asserts a claim based upon the United States Supreme Court
decision Lafler v. Cooper, 132 S.Ct. 1376 (2012), stating:
Just like in [Lafler], the Movant also entered a plea but neither before
plea, or, after plea negotiations did Attorney Paul Sims, advise
Movant that he could have negotiated a term of probation as part of
the plea agreement.
However, or, that the government had the burden of proving beyond a
Reasonable doubt the bank(s) were covered by FDIC.
B. Amended Claim of May 16, 2012
Movant asserts counsel was ineffective “for failure to file instructed direct
appeal.” In support of this claim, Petitioner asserts:
Movant instructed Attorney Paul Sims to raise the issue whether the U.S.
Attorney Thomas Mehan obtained authorization and approval from his
supervisors at the Department of Justice as required by the Petite Police
§§ 9.27-031-300, to initiate and continue the Federal Prosecution for
Bank Robbery under §§ 2113(a), in violation Thompson v. United States,
444 U.S. 248 (1980); Rinaldi v. United States, 434 U.S. 22 (1977); Petite
v. United States, 361 U.S. 529 (1960); Watt v. United States, 422 U.S.
1032 (1975). But counsel failed to appeal. Roe v. Flaves-Ortega, 528
U.S. 470 (2000). Movant requests this court to grant him a “nunc pro
tunc” direct appeal as he desired. Padilla v. Kentucky, 130 S.Ct. 1473
(October 13, 2009).
C. Amended Claim of August 20, 2012
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Movant re-asserts a Lafler v. Cooper claim, asserting his attorney provided
ineffective assistance of counsel for failing:
to advise movant that he was eligible for six months probation, because
offense was a class C felony, and not seeking a lesser plea offer than
the 54 months terms of imprisonment for count one of Bank Robbery
under §§ 2113(a) of the Grand Jury indictment in violation of movant’s
Sixth Amendment Right to effective assistance of counsel, and Fifth
Amendment Right to real notice of the true nature of the charge against
him guaranteed by the U.S. Constitution and Due Process; thus making
the plea involuntary and unintelligent.
Citing Lafler v. Cooper, Petitioner explains further:
Had Mr. Sims advised movant after his investigation and discovery that
the government had sufficient reason to accept terms and conditions
of probation as well as psychotherapy treatments permitted such
placement for non-violent offenders who suffered from a mental
instability and duress at the time of the alleged crime, and sought to
obtain a lesser plea offer from the government, movant would have
agreed to negotiate a plea deal for 6 months probation terms and
conditions that upon completion without violation of law, the
conviction for count one be expunged from the record.
But for counsel’s unprofessional errors it is likely [probable], the court
Would have accepted the terms and conditions of the plea agreement….
D. Amended Claim of September 19, 2012
Movant asserted he “wishes to add the claim of defect in instituting the
prosecution and selective prosecution on and under ‘newly discovered evidence.’”
Movant also stated he “wants to separate his claim of ‘ineffective assistance of
counsel’ from his ‘involuntary guilty plea’ claim, and ameliorate both with
specificity, to overcome the ambiguity within: that he may procure the ‘liberal
constructions’ due him.” Id.
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E. Amended Claim of October 25, 2012
Again asserting Lafler v. Cooper, Movant raised the same claim as he did
in his Amended § 2255 Motion filed on August 20, 2012.
Standard for Relief Under 28 U.S.C. 2255
It is well-established that a petitioner’s ineffective assistance of counsel
claim is properly raised under 28 U.S.C. § 2255 rather than on direct appeal.
United States v. Davis, 452 F.3d 991, 994 (8th Cir.2006); United States v. Cordy,
560 F.3d 808, 817 (8th Cir. 2009). The burden of demonstrating ineffective
assistance of counsel is on a defendant. United States v. Cronic, 466 U.S. 648, 658
(1984); United States v. White, 341 F.3d 673, 678 (8th Cir.2003). To prevail on an
ineffective assistance of counsel claim, a convicted defendant must first show
counsel’s performance “fell below an objective standard of reasonableness.”
Strickland v. Washington, 466 U.S. 668, 687-88 (1984). The defendant must also
establish prejudice by showing “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. Id., at 694.
Both parts of the Strickland test must be met in order for an ineffective
assistance of counsel claim to succeed. Anderson v. United States, 393 F.3d 749,
753 (8th Cir.), cert. denied, 546 U.S. 882 (2005). The first part of the test requires
a “showing that counsel made errors so serious that counsel was not functioning as
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the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. Review of
counsel’s performance by the court is “highly deferential,” and the Court presumes
“counsel’s conduct falls within the wide range of reasonable

professional

assistance.” Id. The court does not “second-guess” trial strategy or rely on the
benefit of hindsight, id., and the attorney’s conduct must fall below an objective
standard of reasonableness to be found ineffective, United States v. LedezmaRodriguez, 423 F.3d 830, 836 (2005). If the underlying claim (i.e., the alleged
deficient performance) would have been rejected, counsel's performance is not
deficient. Carter v. Hopkins, 92 F.3d 666, 671 (8th Cir.1996). Courts seek to
“eliminate the distorting effects of hindsight” by examining counsel’s performance
from counsel’s perspective at the time of the alleged error. Id.
The second part of the Strickland test requires that the movant show that
he was prejudiced by counsel’s error, and “that ‘there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.’ ” Anderson, 393 F.3d at 753-54 (quoting Strickland, 466 U.S.
at 694).

“A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Strickland, 466 U.S. at 694. When determining if
prejudice exists, the court “must consider the totality of the evidence before the
judge or jury.” Id. at 695; Williams v. U.S., 452 F.3d 1009, 1012-13 (8th Cir.
2006).
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The first prong of the Strickland test, that of attorney competence, is applied
in the same manner to guilty pleas as it is to trial convictions. The prejudice prong,
however, is different in the context of guilty pleas. Instead of merely showing that
the result would be different, the defendant who has pled guilty must establish that
“there is a reasonable probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474
U.S. 52, 59 (1985); Matthews v. United States, 114 F.3d 114.
Before any Strickland analysis may proceed, however, there must necessarily
be a consideration of whether the claimed ineffective assistance is viable for
consideration. Pursuant to 28 U.S.C. § 2255(f) a petitioner has one year from the
date his conviction becomes final in which to file his motion for post-conviction
relief.
Discussion
Here, the Movant was sentenced on February 22, 2011. He took an appeal
which was dismissed by the Court of Appeals on April 11, 2011. Since Movant
had one year from the date his appeal became final he therefore had until April 11,
2012 in which to file for relief under 28 U. S. C. §2255(f). Movant timely filed his
initial motion on June 20, 2011.
A. General Claim of Ineffective Assistance of Trial Counsel

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Movant states that “(1) Counsel’s performance fell below an objective
standard of reasonableness. (2) Counsel’s deficient performance prejudiced the
defendant resulting in an unreliable or fundamentally unfair outcome of the
proceeding.” There are no further factual allegations regarding this claim. A simple
claim that counsel was ineffective, without more, is insufficient to warrant relief.
Bryson v. United States, 268 F.3d 560, 562 (8th Cir. 2001) (conclusory allegations
are insufficient to establish ineffective assistance); Estes v. United States, 883 F.2d
645, 647 (8th Cir. 1989) (conclusory allegation was insufficient to rebut strong
presumption of counsel’s competence). The claim is denied.
B. Failing to Subject Prosecution to Meaningful Adversarial Challenge
In support of this claim Movant asserts that “Counsel failed to cite case law
during sentence, or enter into court record during sentencing Defendant’s mental
health issues and relative documents and signed witness testimony to support
claims of duress.” Movant does not explain what case law his attorney should have
filed or cited during sentencing. Such an empty allegation provides no basis for
relief under the present state of the law.
Movant claims that his attorney failed to enter into the court record during
sentencing Defendant’s mental health issues. Movant is patently incorrect. Counsel
filed Objections to the Presentence Investigation Report and Sentencing
Memorandum prior to sentencing in which he attached a mental evaluation report
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for the Court’s consideration, specifically, the report of Dr. Ajuga Muhammad, a
licensed psychotherapist. Counsel is not ineffective on this basis. This claim is
likewise denied.
Lastly, Movant argues that his attorney was ineffective because he failed to
file relevant documents and signed witness testimony to support Movant’s claim of
duress. Movant is gravely mistaken. Counsel filed Objections to the Presentence
Investigation Report and Sentencing Memorandum, wherein he posited Movant’s
claim of duress which led to Movant robbing the banks. As exhibits to that
sentencing memorandum, counsel filed a transcript of a sworn statement by
Movant’s girlfriend explaining Movant’s duress. Counsel also filed an affidavit
from another individual, Brian Doss, who explained the situation with the police
which led to Movant’s duress and subsequent bank robberies.
Much to the chagrin of Movant he cannot establish the prejudice prong of the
Strickland analysis. On such allegations, unsupported in any way upon the record,
he fails to establish that the outcome of his sentencing proceedings would have
been different if only counsel would have done the things Movant wanted him to.
Indeed, counsel did do the things Movant wanted him to do. Not only did counsel
bring these issues to the Court’s attention at the time of sentencing, but Movant
also discussed these issues at length with the Court. The claim of duress as a
justification for committing the bank robberies was rejected by the Court. Movant
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has failed to establish that, even if counsel’s representation had somehow been
constitutionally infirm, the outcome of his sentencing would have changed.
Movant’s claim is denied.
C. Failure to Fully Disclose Plea Offer to Defendant
In support of this claim, he states:
Counsel misadvised defendant of language content used by the
government in the plea offer to Defendant. Counsel failed to correctly
inform Defendant that by Defendant agreeing to the plea offered by the
government, Defendant was agreeing to not ask for a downward
departure. Counsel did not clearly explain this to the defendant.
Defendant was told by counsel that all parties involved was [sic] aware
that Defendant sought a downward departure. The sole purpose of the
defense investigations was to support defense claims that defendant’s
crimes were predicated upon duress. This claim was supported by
signed witness testimony, defendant’s mental health history and
current psychotherapist analysis. The defendant sought a downward
departure due to these mitigating circumstances. Had the defendant
been clearly and fully informed by counsel that the prosecution had
failed to acknowledge defendant’s request for a downward departure,
defendant would not have accepted drafted plea agreement in its current
form. Counsel lead [sic] defendant to believe that the plea offer was
partial to the defendant’s need to seek the least restrictive sentence.
A review of the plea agreement established that, in exchange for Movant’s
plea to one of the three counts of the indictment, the Government would dismiss
the remaining two counts. In addition, in exchange for the Government foregoing
convictions on Counts II and III, all parties agreed that no one would ask for a
sentence above or below the applicable guideline range. This was clearly set forth
in the plea agreement. See Plea Agreement at pg. 2. The plea agreement later states
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that “[t]his document constitutes the entire agreement between the parties and the
government.” Movant knew that he was agreeing not to ask for a downward
departure when he signed the plea agreement and entered his plea of guilty,
pursuant to that plea agreement, before this Court.
At the time of Movant’s guilty plea, Movant was specifically asked about
the Plea Agreement, at which time the following dialogue took place:
Court:

And with respect to that Plea Agreement or plea of guilty, Mr.
Watkins, I made a reference to the Plea Agreement when we
started. .... And before signing the document, did you review it
in its entirety with your lawyer?

Deft:

Yes, sir, I did.

Court:

And as a result of that review, are you satisfied that you
understand everything in the Plea Agreement?

Deft:

Yes, I am satisfied, Your Honor.

Court:

Do you have any questions about anything in the Plea
Agreement?

Deft:

No, sir, Your Honor.

Tr. at 14-15.
Although Movant now claims he was unaware that he would not be able to
seek a downward departure, the claim is without merit. His sworn statements
before the court “carry a strong degree of verity and pose a formidable barrier in
any subsequent collateral proceedings.” Nguyen v.United States, 114 F.3d 699, 703
(8th Cir. 1997). His third claim is denied.
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D. Concurrent Sentences
Here Movant claims defense counsel was ineffective because counsel
incorrectly informed Movant that his federal and state sentences would run
concurrent. In support of the claim he states:
Movant instructed Attorney Paul Sims to raise the issue whether the
U.S. Attorney Thomas Mehan obtained authorization and approval from
his supervisors at the Department of Justice as required by the Petite
Police §§ 9.27-031-300, to initiate and continue the Federal Prosecution
for Bank Robbery under §§ 2113(a), in violation Thompson v. United
States, 444 U.S. 248 (1980); Rinaldi v. United States, 434 U.S. 22
(1977); Petite v. United States, 361 U.S. 529 (1960); Watt v. United
States, 422 U.S. 1032 (1975). But counsel failed to appeal. Roe v.
Flaves-Ortega, 528 U.S. 470 (2000). Movant requests this court to grant
him a “nunc pro tunc” direct appeal as he desired. Padilla v. Kentucky,
130 S.Ct. 1473 (October 13, 2009).Movant’s § 2255 Motion, pg. 6.
Counsel’s representation was not constitutionally infirm for failing to ask
this Court to run the federal sentence concurrent with the state sentence because
the state sentence did not exist at the time of the federal sentencing. Thus, this
Court would have had no sentence with which to run it concurrent and no authority
to do so. The point is entirely irrelevant and denied as the sentences are in fact
being served concurrently as noted in the Transcript of State Sentencing
Proceedings. As such there is no prejudice to the movant. This point is denied.
E. Mitigating Evidence at Sentencing
Movant claims that his counsel was ineffective for failing to present
mitigating evidence to the Court at sentencing in that:
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(1) Counsel failed to enter into Court record during sentencing
that investigations conducted on behalf of defense counsel Paul Sims
revealed and produced signed witness testimony to support claims
that defendant had been threatened and harassed at gunpoint by St.
Ann Police Department on more than one occasion [so] that
defendant feared for his life and the lives of his family; (2) Counsel
failed to enter into court record during sentencing the Defendant’s
past and current mental health issues for major depression of which
the defendant suffers; (3) a prior conviction in Federal Court (2005August) whereby the Federal Courts supported and accepted the
defendant Mental Health issues and ruled in favor of a downward
departure below guidelines due to diminished capacity; (4) the prior
defense counsel false, investigative witness reports that would have
greatly affected the defendant’s chances of receiving a favorable
outcome in trial proceedings or for a downward departure
duress claim; (5) the attachments Addendum to Final Copy of P.S.I.
report and that the government no longer objected to a downward
departure, but supported a downward departure based on these
findings.

Movant’s § 2255 Motion, pg. 7
1. Duress
Movant has asserted his attorney failed “enter into the court record”
testimony of people who supported his claim of harassment by the police. Again,
Movant has misstated the record. Counsel did make this information part of the
record when he filed his sentencing memorandum and attachments as exhibits.
Movant has failed to establish his counsel’s performance was constitutionally
infirm.

15

Because his attorney brought these issues to the attention of the Court,
Movant cannot establish prejudice. He cannot establish the outcome of his
sentencing proceedings would have been different.
2. Mental Health Issue
Here Watkins alleges that his attorney failed to posit his past and current
mental health issues with the Court. The record clearly belies this position.
Counsel, in fact, did attach a mental health evaluation as an exhibit to Movant’s
sentencing memorandum. Movant cannot establish that his attorney’s performance
was deficient. The mere fact that the Court was not persuaded by the argument
does not establish deficient performance as an attorney.
Movant fails to establish any prejudice as his counsel in fact filed with the
Court the very information that Movant argues was not filed and/or argued. The
Presentence Investigation Report discussed Movant’s mental health at length,
thereby giving support to counsels’ submission. The matter was fully presented to
this Court which concluded departure/variance was not warranted.
3. Prior Federal Case
Here Movant argues counsel was ineffective by failing to argue that a
different district court granted a downward departure to Movant as a result of his
mental health issues. The Court was fully apprised of these circumstance by virtue
of the detailed Presentence Investigation Report. Simply because counsel did not
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specifically say to this Court “and Movant received a departure in his earlier case,”
does not render his performance constitutionally infirm.
There is nothing in the record to support a finding of prejudice. This Court
had before it all of the information that the previous court had available to it. In
addition, this Court had additional reports regarding Movant’s mental health.
Having considered all of this information, this Court concluded that a downward
departure/variance was not warranted. Movant has failed to establish the outcome
would have been any different. The point fails and is denied.
4. Prior Counsel’s False Investigative Reports
Movant claims his counsel was ineffective for bringing to the Court’s
attention that Movant’s prior defense counsel had something to do with false
investigative witness reports “that would have greatly affected the defendant’s
chances of receiving a favorable outcome in trial proceedings or for a downward
departure duress claim.” does not explain what these prior “false, investigative
reports” are or how they would have had any impact on either his trial or his
sentencing. Therefore, as merely a bold unexplained, unsupported assertion, the
point is denied as Movant clearly cannot establish deficiency of performance or
prejudice in his sentencing.
5. Government’s Lack of Objection

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The United States of America stated it had no objections to the
Presentence Investigation Report. Movant attempts to argue his representation was
constitutionally infirm as he did not argue Government “no longer objected to a
downward departure, but supported a downward departure based on these
findings.” On the contrary, the Government was stating that it had no objections to
the findings of fact or the calculation of the sentencing guidelines. The
Government was not required to comment on the statement that there may be
grounds for a variance or downward departure and, therefore, did not do so. The
failure of counsel to challenge the Government’s response, therefore, was not
constitutionally infirm representation.
Clearly, Movant is unable to establish prejudice on this point as well.
Again, he is unable to demonstrate that the outcome would have been any
different.
F. Pretrial Discovery
Here Movant asserts:
Upon being appointed, new counsel Paul Sims failed to file a Motion to
Reinstate Pre-Trial Motions. Defendant waived pretrial motions
contingent upon the strategy of the first defense team under Lee Lawless.
Had counsel Paul Sims conducted a pre-trial discovery: (1) counsel would
have discovered defendant suffered from major depression with a
diminished capacity supported in court findings in a previous conviction
by a federal court and documented doctors reports; (2) counsel would
have discovered erroneously falsified witness statements that were
submitted by prior defense counsel that would have prejudiced
defendant’s claim of duress. All of which was relevant to defendant’s
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case.
Movant’s § 2255 Motion, pg. 7.
The essence of this claim is that counsel was ineffective for failing to
reinstate pre-trial motions because, pursuant to those motions, counsel would have
determined: (1) Movant had grounds for diminished capacity; and (2) there were
some issues with Movant’s claim of duress.
Movant fails in establishing the “performance” prong of the Strickland
analysis. His first attorney (Lee Lawless) and second attorney (Paul Sims) did not
file motions to suppress evidence because there was no suppressible evidence.
Counsel cannot be found to be ineffective for failing to object to something that
has no basis in law or fact. Dyer v. United States, 23 F.3d 1424, 1426 (8th Cir.
1994) (Dyer’s claim of ineffective assistance of counsel fails because the claim
Dyer asserts counsel should have pursued is meritless); Rodriguez v. United States,
17 F.3d 225, 226 (8th Cir. 1994) (counsel not ineffective for failing to raise
meritless challenge); Thomas v. United States, 951 F.2d 902 (8th Cir. 1991). See
also United States v. Willson, 114 Fed.Appx. 770, 2004 WL 2820941 (8th Cir.
2004); Smith v. United States, 2011 WL 1327421 at *7 (E.D.Mo.) (“Counsel is
under no obligation to make frivolous or meritless arguments”); United States v.
Coleman, 399 F.Supp.2d 1008, 1016 (E.D.Mo. 2005) (“Counsel cannot be faulted
for failing to raise meritless arguments.”); United States v. Sanders, 165 F.3d 248,
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253 (3rd Cir. 1999) (“There can be no Sixth Amendment deprivation of effective
counsel based on an attorney’s failure to raise a meritless argument.”).
Movant cannot establish prejudice as the issues he raises are not sentencing
issues. The outcome of his sentencing would not have been any different had
counsel reinstated any pretrial motions to suppress. The issues of duress and
diminished mental health issues are not issues for motions to suppress. The point is
denied.
G.

Misadvising Movant About Acquittal vs. Pleading
Movant claims his attorney failed to advise him properly about the

improbability of an acquittal versus the benefit of pleading guilty. He states:
(1) Counsel led Defendant to believe that by pleading to one Count of
Bank Robbery, he would receive a downward departure if witnesses
corroborated claims of threats and harassment of St. Ann Police
Department, to which supports claim of duress and past and current
mental health issues, coupled with the courts observance of Rule 3553,
defendant was under the guise that these mitigating circumstances would
be favorable for defendant to receive a lighter sentence; (2) counsel lead
defendant to believe that the sentencing judge could issue investigations
upon request of the defendant into allegations of police harassment and
violations of defendants civil rights by St. Ann Police Department upon
corroborated (signed) for the defense (During sentencing, defendant
requested the judge to issue such investigations. Wherein, the Honorable
Judge Autrey told the defendant that he had no authority to issue such
investigations.
Movant claims that his attorney told him he would receive a downward
departure or variance, counsel’s affidavit attached hereto as Exhibit 2 establishes
otherwise. In the affidavit, defense counsel notes that he “never told Mr. Watkins
20

that he would get a down[ward] departure, [he] only told him that the Federal
Sentencing Guidelines were advisory only, the judge was not part of the Plea
agreement, and was not bound by it, therefore the judge could do whatever the
judge wanted to do in regards to sentencing.” See Exhibit 2, ¶ 1. At the change ofplea-proceedings Movant said he had read the plea agreement, that he understood
the plea agreement and that he had no issues with the plea agreement. The plea
agreement was clear that Movant was not going to be receiving a downward
departure or variance on mental health issues. Movant’s present claim that he was
informed otherwise is contrary to his sworn statement before this Court, and is
therefore not credible. Movant’s claim is denied.
Watkins asserts his attorney led him to believe that the sentencing judge
could issue investigations upon request of the defendant into allegations of police
harassment and violations of defendants civil rights by St. Ann Police Department.
In counsel’s affidavit, however, counsel states that: “In regards to Judge Autrey
looking into allegations of police misconduct, Mr. Watkins informed me at our
first meeting, that Judge Autrey told him if he uncovered any evidence of this, he
would investigate it, I then responded I would contact the witnesses that he told me
about.” Counsel did in fact contact witnesses and file documents with this Court
containing that information. The representation was not constitutionally infirm.

21

In the context of a guilty plea, Movant needed to show that there was a
reasonable probability that, but for counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59
(1985). Movant has made no such assertion. There is no showing of prejudice The
claim, therefore, fails.
H. Misadvising Movant on Direct Appeal
Here Movant argues that his attorney gave him poor advice on the direct
appeal.
The affidavit from attorney Paul Sims refutes allegations that he persuaded
Movant to drop his appeal. He clearly states that he merely advised Watkins of the
consequences of appeal. Subsequent to that advice Movant advised he wished to
drop his appeal. Counsel therefore followed the wishes of Movant and dismissed
the appeal. In order to establish prejudice caused by ineffective assistance of
appellate counsel, a petitioner must show “a reasonable probability that, but for
counsel’s deficient performance, the result of his direct appeal would have been
different.” Williams v. Kemna, 311 F.3d 895, 898 (8th Cir. 2002).
The appeal surely would have failed in any event as there was a specific
waiver of appeal by Movant. Appeal waivers are routinely enforced by the Eighth
Circuit Court of Appeals. See United States v. Michelsen, 141 F.3d 867, 871, (8th

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Cir.), cert. denied, 525 U.S.942 (1998); United States v. Berberich, 254 F.3d 721
(8th Cir.), cert. denied., 534 U.S. 1013 (2001).
Here Movant waived his rights to appeal in the plea agreement. That waiver
was clear and unambiguous. This Court reviewed that waiver with Movant. A
review of the transcript established that Movant’s plea was knowing and voluntary.
Therefore, Movant would not have prevailed on appeal. As a result, he cannot
establish prejudice and his claim of ineffective assistance of counsel necessarily
fails.
The Amended Claims
Movant did not file his first amended motion until April 19, 2012. Even
allotting time for mailing, Movant did not sign his motion until April 13, 2012 or
April 15, 2012. In that motion Movant attempted to add a Lafler claim for relief.
He later reasserted his Lafler claim in a filing on August 20, 2012 and in another
filing on October 25, 2012. All three of these amendments fall outside the one year
time period in which to file a motion for relief.
In order for for this court to consider claims filed by amendment like this,
they must relate back to the earlier, timely-filed motion. Dodd v. United States, 614
F.3d 512 (8th Cir. 2010).
Claims made in an amended motion relate back to the original motion
when the amendment asserts a claim that arose out of the same “conduct,
transaction, or occurrence set out ... in the original” motion. Fed.R.Civ.P.
15(c)(1)(B). To arise out of the same conduct, transaction, or occurrence,
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the claims must be “tied to a common core of operative facts.” Mayle v.
Felix, 545 U.S. 644, 664 ... (2005) (applying Rule 15(c) to a 28 U.S.C.
§2254 petition). An amended motion may raise new legal theories only if
the new claims relate back to the original motion by “aris[ing] out of the
same set of facts as [the] original claims.” Mandacina [v. United States,
328 F.3d 995, 1000 (8th Cir. 2003)].
Dodd, 614 F.3d at 515. Since Lafler v. Cooper was not decided until March
2012, the claim could not relate back to any claims raised in Movant’s initial
motion.
Title 28 U.S.C. § 2255(f)(3) provides that, despite when the original motion
was due, the one- year period of limitation may begin running from “the date on
which the right asserted was initially recognized by the Supreme Court and made
retroactively applicable to cases on collateral review.” Assuming the principles
enunciated in Lafler v. Cooper assert a right newly recognized by the Supreme
Court and were made retroactive, Movant’s amended claims may, arguably,
nonetheless be considered.
The majority of circuit courts to consider this issue, including our Eighth
Circuit, have concluded that Lafler v. Cooper does not establish a newly
recognized right to effective assistance of counsel. See In re Liddell, 722 F.3d 737,
738-39 (6th Cir. 2012); In re Graham, 714 F.3d 1181, 1182-83 (10th Cir. 2013);
Gallagher v. United States, 711 F.3d 315, 316 (2d Cir. 2013); Williams v. United
States, 705 F.3d 293, 304 (8th Cir. 2013); In re King, 697 F.3d 1189 (5th Cir.
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2012); Buenrostro v. United States, 697 F.3d 1137, 1140 (9th Cir. 2012); Hare v.
United States, 688 F.3d 878, 879 (7th Cir. 2012); In re Perez, 682 F.3d 930, 93234 (11th Cir. 2012). And, even assuming Lafler v. Cooper announced a new rule,
the case does not contain any express language as to retroactivity. Gallagher, 711
F.3d at 316. The statute of limitations has run on Petitioner’s amended claims and
they are all, therefore, time barred.
Finally, movant has failed to demonstrate that jurists of reason would find it
debatable whether the petition is untimely.

Thus, the Court will not issue a

certificate of appealability. 28 U.S.C. ' 2253(c).
Accordingly,
IT IS HEREBY ORDERED that this action is DENIED in all respects.
IT IS FURTHER ORDERED that the Court will not issue a certificate of
appealability.
An Order of Dismissal will be filed separately.
Dated this 30th day of June, 2014.

HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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